The panel rejected claims that governmental immunity didn't apply because employees knew about the popularity of the spot where the drowning occurred.

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Lake McDonough in Barkhamsted. Photo by Google.

The Connecticut Appellate Court relied on governmental immunity to uphold a lower court’s summary judgment dismissing a lawsuit against the Metropolitan District Commission for a drowning on its lake property in Barkhamsted.

In its 3-0 ruling Tuesday, the panel said the family of 23-year-old Andres Burgos was not able to show that employees should have known people might be using an undesignated swimming area on Lake McDonough known as “The Point.” The family attempted to argue government immunity didn’t apply because public employees should have known of the danger associated with people swimming in that particular area.

Burgos was swimming with friends when he drowned, according to the family’s attorney, Steven Errante of New Haven-based Lynch, Traub, Keefe & Errante.

Burgos’ estate claimed the MDC knew people swam in the area. The MDC, the state’s sewer and water agency, argued that it had governmental immunity and that Burgos and his friends were trespassing when the incident occurred in July 2011. A fence was put up after the incident to keep people out of the area.

Writing for the court, Chief Judge Alexandra DiPentima said: “We conclude that a group of individuals in an undesignated swimming area, whose presence is unknown to the defendant, cannot be deemed identifiable for the purposes of the identifiable person, immunity harm exception. Accordingly, there is no genuine issue of material fact as to whether the plaintiff’s claim is barred by the doctrine of governmental immunity.”

“The trend has been to almost eliminate any municipal liability,” Errante said. “Towns and entities that are supposed to be taking care of citizens can be negligent with no consequences.”

Errante said the MDC knew for a long time the area where Burgos drowned was a popular place to swim.

“They were constantly trying to stop people from swimming there,” Errante said. ”They had no lifeguards in the area. While they had boat patrols, they were not frequent enough. There were no eyes on that area.”

The area in question is difficult to see from the lake, Errante noted.

With regard to whether Burgos had any liability in his own death, Errante said he would have hoped a jury could have decided that.

“The way the law is structured now, government immunity has taken away the ability for juries to make that decision,” Errante said.

Errante said he has recommended that Burgos’ family not appeal to the Connecticut Supreme Court.

“It is so hard to crack government immunity,” Errante said. “There is no real chance the Supreme Court will take the case or, if they did, reverse the decision.”

Burgos was at Lake McDonough for a family member’s third birthday party, Errante said. “It’s a very sad situation that every time his birthday comes up they will remember Mr. Burgos’ death.”

The MDC is represented by Jack Steigelfest and Christopher Harrington of Hartford’s Howard, Kohn, Sprague & FitzGerald. Neither attorney responded to a request for comment Wednesday,

Errante was assisted by colleagues Daniel Scholfield and Marisa Bellair.

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